Legislative Update – January 19, 2017 It is great to be back at the State House. I have been appointed the Chair of the House Judiciary Committee again. I am excited to work on issues that promote workforce development through justice policy reform.

It is great to be back at the State House. I have been appointed the Chair of the House Judiciary Committee again. I am excited to work on issues that promote workforce development through justice policy reform. These include: enhancing victims rights, ensuring fair and impartial policing, removing collateral consequences of a criminal record for nonviolent offenses, statewide access to justice, and geographic justice (equity) in charging and sentencing.

Geographic Justice: Treatment Courts and Sentencing

The location where an offense takes place should not be determinant of the range of outcomes for an offender. Yet, in Vermont there are effectively 14 criminal justice systems, one for each county. For the same action, an offender in one county could face a felony charge while an offender in another county could be diverted to a treatment court without being charged with a crime. As a matter of fundamental fairness, we should strive for equal opportunities to avoid conviction or incarceration.

More specifically, three counties currently have separate drug treatment dockets and one county has a DUI docket. In these dockets, certain qualified offenders whose addiction has led to criminal behavior are provided treatment services with the close oversight of a judge to ensure the offender is complying with his or her treatment requirements. Where there are treatment courts, an individual charged with a drug crime or first offense DUI has the opportunity for charge reduction, charge dismissal, or a lesser period of incarceration.

My committee will be evaluating if the treatment court dockets can be expanded to all counties. When treatment courts follow best practices, double-digit drops in recidivism rates can be obtained. As a matter of policy, every county should have drug, DUI, and mental health treatment dockets. New Hampshire just established statewide treatment courts.

Geographic disparities are also encountered due to broad sentencing ranges for certain crimes. For example, a conviction on heroin trafficking carries a sentence under State law of 0 to 40 years. The average sentence for those convicted of this crime in Vermont is 4 to 7 years, but the wide sentencing range allows prosecutors to seek much longer sentences for the same crime. The potential disparity can be addressed by narrowing the potential sentencing range. The legislature can ensure that similar offenses carry similar maximum penalties. Maximum penalties can be set so that they are high enough to account for egregious but rare behavior and low enough to inhibit one county from adopting an average sentence that is far longer than the statewide average.

Bail Reform

The Attorney General and other prosecutors testified in support of bail reform. To ensure against flight risk and nonappearance in court, offenders may be required to post bail to be released before their trial. Often individuals may not have the resources to post bail and thus are incarcerated at a substantial cost to the State. In addition, individuals who cannot post bail may decide to plead to an offense rather than remain incarcerated pending a hearing. The system works as a disservice to the impoverished and is a poor use of the State’s resources.

The Committee will address over-incarceration due to bail policy, including disallowing bail for those who are cited into court as opposed to those who are arrested and lodged. If a police officer has decided to cite a person into court rather than to arrest him or her, then the officer’s judgment that the individual does not present a flight risk should be dispositive. Also, rather than holding individuals because they have failed to appear, a better investment may be to develop a system to notify offenders of pending court dates. Such notification systems in other states have proved effective in increasing appearance rates.

Results-Based Accounting

The Committee also focused on Results-Based Accounting. We first received an overview of the state of the Judiciary from the Justices of the Vermont Supreme Court. The Court Administrator reviewed statistics addressing how well the courts are doing in achieving the State constitutional requirement to provide every Vermonter with free and prompt justice. Generally, the courts are effectively addressing the many cases that come before them. But we also learned that the courts continue to face challenges in addressing a growing number of juvenile cases related to abuse and neglect and termination of parental rights as a result of the ongoing opioid epidemic.

Unrepresented Litigants

An increasing number of litigants in our courts do not have legal representation. This potentially negatively affects whether litigants receive procedural fairness.

The Vermont Bar Association and organizations such as Vermont Legal Aid and Legal Services Law Line are offering assistance to litigants in court. In addition, the courts are modifying rules and procedures to make it easier for unrepresented litigants to navigate the legal process. This is a growing problem, however, with no easy solutions.